Justice Scalia and the Art of Rhetoric
Shaman, Jeffrey M., Constitutional Commentary
Throughout his tenure as a Supreme Court justice, Antonin Scalia has suffered a great deal of scathing criticism. He has been castigated as mean-spirited, intolerant, disingenuous, rigid, unprincipled, partisan, reactionary, simplistic, and misogynistic. His views about the Constitution have been described as troubling, alarming--even chilling--and his philosophy of originalism has been dismissed as a fraud. But give credit where credit is due: he is one helluva stylist. Nicknamed "El Nino" after the calamitous oceanic phenomena that can create havoc throughout the globe, Justice Scalia has demonstrated his rhetorical skills in opinion after opinion, leaving no doubt that he is a master of metaphor and other belletristic flourishes. The septuagenarian jurist wields a wicked poison pen when the spirit moves him, peppers his opinions with creative lists of examples, and is wont to drop in a bon mot here and there, not to mention an arcane foreign phrase that sends lesser mortals rushing to their Latin, French, or German dictionaries. Other justices on the High Court have displayed enviable writing skills. A few--Louis Brandeis and Robert Jackson come to mind--were able on occasion to write with exceptional grace and beauty. Justice Holmes, himself the son of an esteemed writer, had a special gift for conceiving aphorisms. (1) Justice Scalia's talent, however, lies in a different direction, distinguished by a flair for being strikingly sharp and clever.
Not one to avoid confrontation, Justice Scalia is notorious for his verbal barbs, frequently directed at his colleagues on the Supreme Court. Hein v. Freedom from Religion Foundation, Inc. offers a recent example of Justice Scalia's gift for skewering his colleagues. In Hein he begins, tellingly, with a pugilistic metaphor, followed by a series of censorious adjectives: "[L]aying just claim to be honoring stare decisis requires more than beating Flast [v. Cohen] to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive." (2) A few sentences later, he delivers the zinger, decked out in another, but more imaginative, metaphor: "We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it." (3)
As his opinion in Hein illustrates, Justice Scalia is particularly adept at crafting a neat phrase, especially when it can be used to disparage another justice. Other examples of this facility are legion. Dissenting in Sykes v. United States, he dismissed what Justice Kennedy had written for the Court's majority as a "tutti-frutti opinion." (4) In FEC v. Wisconsin Right to Life, he accused Chief Justice Roberts, who authored the Court's principal opinion, of engaging in "faux judicial restraint." (5) In Michigan v. Bryant, he lectured Justice Sotomayor for writing a majority opinion that, "[i]nstead of clarifying the law," made the Court "the obfuscator of last resort." (6) And in Barnes v. Glen Theatre, throwing brevity to the wind, he castigated the dissenters for adopting a "Thoreauvian 'you-maydo-what-you-like-so-long-as-it-does-not-injure-someone-else, beau ideal...." (7)
Evidently, Justice Scalia is practiced at using abundant hyphenation in order to craft elongated compound phrases. He repeated the trick in Planned Parenthood of Southeastern Pennsylvania v. Casey, scolding other justices for adopting a "keep-what-you-want-and-throw-away-the-rest" version of stare decisis. (8) It is a snazzy device that shows off his inventiveness, albeit at the risk of being a bit too cute.
Cultured and sophisticated though he may be, Justice Scalia is not above using a cliche when it suits his purposes, as it did in NEA v. Finley. (9) In that case, the Court's majority gave a narrowing construction to a federal statute in order to save its constitutionality. Although Justice Scalia concurred in the judgment upholding the statute, he thought that the Court's narrow construction of the statute vitiated its meaning to such an extent as to render it ineffectual. …